Cite as U.S. v. Gambill, 912 F.Supp. 287 (S.D.Ohio 1996)
UNITED STATES of America, Plaintiff,
v.
Robert Joe GAMBILL, Sr., Defendant.
No. CR-1-95-092.
United States District Court, S.D. Ohio, Western Division.
Jan. 2, 1996.
Peter Rosenwald, Miller & Rosenwald, Cincinnati, OH, for
Robert Joe Gambill, Sr.
David J. Horne, United States Attorney's Office, Dayton, OH,
for U.S.
ORDER
SPIEGEL, Senior District Judge.
This matter is before the Court on the Defendant's Motion for
Judgment of Acquittal (doc. 33), the Government's Memorandum in
Opposition (doc. 34), and the Government's Reply (doc. 35).
The Defendant originally made this motion, pursuant to Federal
Rule of Criminal Procedure 29, at the end of the Government's case.
The Court reserved its ruling until after the jury returned its
verdict. See Fed. R.Crim.Pro. 29(b) (allowing court to reserve
ruling until after the jury returns its verdict). The jury
returned a guilty verdict on each of the six counts of the
indictment. Even though the Court reserved its decision on this
motion, the Court "must decide the motion on the basis of the
evidence at the time the ruling was reserved." Fed.R.Crim.P. 29(b).
BACKGROUND
At trial, the Government presented evidence that the Defendant
possessed two unregistered pipe bombs in violation of 26 U.S.C.
section 5861(d) and section 5871 (Count I knowingly made two pipe
bombs without receiving an approved application in violation of 26
U.S.C. section 5861(f) and section 5871 (Count II); possessed an
unregistered firearm silencer in violation of 26 U.S.C. section
5861(d) and section 5871 (Count III); possessed a firearm silencer
without a serial number in violation 26 U.S.C. section 5861(i)
(Count IV); knowingly made a firearm silencer without an approved
application in violation of 26 U.S.C. section 5861(f) and section
5871 (Count V); and possessed an unregistered machine gun in
violation of 26 U.S.C. section 5861(d) and 5871 (Count VI).
[footnote 1] The Government presented sufficient evidence for the
jury to find that the Defendant violated each of these provisions.
On cross-examination of the Government's witnesses, the
Defendant established his theory that he was making the pipe bombs
to kill groundhogs. Therefore, the Defendant attempted to present
to the jury that the pipe bombs were not destructive devices under
26 U.S.C. section 5845(f). Additionally, the Defendant established
that it would have been impossible for him to register a machine
gun, since under 18 U.S.C. section 922(o) it is illegal to possess
a machine gun.
DISCUSSION
I. The Machine Gun
At trial, the jury found Mr. Gambill guilty of possessing an
unregistered machine gun in violation of the National Firearms Act
("NFA"), 26 U.S.C. section 5861(d) (enacted 1968). In 1986,
Congress enacted a separate criminal statute prohibiting the
possession of any machine gun made after 1986. 18 U.S.C. section
922(o). [footnote 2] The Government's witnesses admitted that the
Government would not permit the registration of machine guns
covered by section 922(o). Mr. Gambill contends that due process
bars his conviction under a statute that punishes his failure to
register a weapon when such registration is precluded by law. He
also maintains that sections 5861(d) and 922(o) are irreconcilable.
We agree and reverse his conviction under Count VI.
Section 5861(d) states that it is unlawful for any person to
"receive or possess a firearm which is not registered to him in the
National Firearms Registration and Transfer Record. 26 U.S.C.
section 5861(d) (emphasis added). Section 922(o) states in
pertinent part that "it shall be unlawful for any person to
transfer or possess a machinegun." 18 U.S.C. section 922(o). The
Bureau of Alcohol, Tobacco and Firearms' ("BATF") agents admitted
at trial that all applications will be denied if it is illegal to
possess or transfer the weapon. See also 26 U.S.C. section 5812(a)
(applications will be denied if possession of the firearm would
place person in violation of law). Mr. Gambill concedes that the
Government could have charged him with illegal possession of a
machine gun under section 922(o), but the Government chose not to
do so. Instead, the Government chose to prosecute Mr. Gambill under
section 5861(d) with possession of an unregistered machine gun.
A. Split in the Circuits
This case presents an issue that the United States Court of
Appeals for the Sixth Circuit is yet to decide: whether section
922(o) implicitly repealed portions of the NFA. A split of opinion
exists in the circuits that have addressed this question. See
United States v. Dalton, 960 F.2d 121 (10th Cir.1992) (un-
constitutional to prosecute under section 5861(d)); United States
v. Kurt, 988 F.2d 73 (9th Cir.1993) (favoring analysis in Dalton);
but see United States v. Ardoin, 19 F.3d 177 (5th Cir.1994)
(finding section 5861(d) and section 922(o) reconcilable because a
citizen could comply with both by not possessing a machine gun);
United States v. Ross, 9 F.3d 1182 (7th Cir.1993) (same); United
States v. Jones, 976 F.2d 176 (4th Cir.1992) (same); United States
v. Djelaj, 842 F.Supp. 278 (E.D.Mich.1994) (same).
The Court finds the reasoning of Dalton to be correct, because
convicting citizens for violating laws with which they cannot
possibly comply is fundamentally unfair. It is hard to understand
how any circuit could find such a conviction permissible when the
provisions of the NFA have been totally eclipsed by section 922(o).
Moreover, section 5861(d) cannot be complied with due to the
refusal of the Government to permit compliance.
1. Implied Repeal of 5861(d)
A statute is repealed by implication only when that statute
and a later statute are irreconcilable. Morton v. Mancari, 417
U.S. 535, 550, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974). We
find section 922(o) and section 5861(d) irreconcilable in this
case.
Until the enactment of section 922(o), a citizen could legally
possess a machine gun, as long as he/she complied with the relevant
registration and tax provisions of the NFA. See Ardoin, 19 F.3d at
183 (Wiener, T., dissenting) ("Simply put, since 1934 the NFA has
said to such a citizen, 'You may manufacture, transfer, or possess
a machine gun if-but only if-you register and pay taxes on it.'").
Then, in 1986, Congress enacted section 922(o), which forbids the
possession of any machine gun made after 1986. Congress did not
indicate what effect section 922(o) would have on the NFA. "But
undeniably the enactment of section 922(o) did effect the NFA-
enormously." Id. The NFA forbids the BATF to register and accept
taxes for illegal firearms. Consequently, Congress' enactment of
section 922(o), which made the mere possession of machine guns by
private citizens illegal, rendered the extensive taxation and
registration provisions of the NFA meaningless. As Judge Wiener
eloquently stated, "Their vestigial existence on the statute books
analogizes perfectly to the human appendix: no useful function
whatsoever, but unlimited potential for, insidious mischief." Id.
at 184.
Finally, the obsolescence of the NFA provisions is revealed if
one looks to their original purpose. The Supreme Court upheld the
validity of the NFA because it "was a revenue measure only and did
not purport to exercise any general criminal power not delegated to
Congress by the Constitution." United States v. Rock Island Armory,
773 F.Supp. 117, 121 (C.D.Ill.1991) (citing Sonzinsky v. United
States, 300 U.S. 506, 513, 57 S.Ct. 554, 555-56, 81 L.Ed. 772
(1936)). After the enactment of Section 922(o), however, those
provisions no longer produce any revenue from the possession of
machine guns by private citizens. "The suggestion that a tax
measure can somehow have continued vitality when it no longer taxes
certainly tests one's imagination." Ardoin, 19 F.3d at 184 (Wiener,
J., dissenting).
While implied repeals are disfavored, in this instance the
Court is left with no other logical choice. Section 5861(d) and
section 922(o) are utterly irreconcilable. Section 922(o) has
superseded and supplanted section 5861(d) with respect to machine
guns made and possessed after May 19, 1986.
2. Due Process
Gambill contends that in order to be convicted under section
5861(d) you must both possess a machine gun and fail to register
it. In his motion, Gambill does not contest that he possessed a
machine gun. Gambill, however, maintains that it violates
fundamental fairness to convict him for failing to register his
machine gun, an act which everyone agrees he could not perform.
The Government argues that Mr. Gambill could have complied
with both section 5861(d) and section 922(o) by not possessing a
machine gun. In effect, the Government urges us to adopt the "just
say no" argument of the Fourth, Fifth and Seventh Circuits. Judge
Wiener responded to this argument by saying, "Such casual,
dismissive responses are just not satisfactory when it comes to
engaging in an activity, such as keeping and bearing arms, that
arguably implicates the Bill of Rights." [footnote 3] Ardoin, 19
F.3d at 186. In this case, the Court does not question Congress'
authority to make a law prohibiting citizens from owning or
possessing machine guns. [footnote 4] Congress did exactly that
when it enacted section 922(o). It, however, is fundamentally
unfair to prosecute citizens, like Mr. Gambill, for failing to
register and pay taxes on their machine guns now that the
Government prohibits them from complying with the statute.
Congress definitely has the power to tax citizens under the
Sixteenth Amendment. But, surely any reasonable person would agree
that it would violate due process for the Government to arrest
citizens for failing to file tax returns, after Congress passed a
law prohibiting the Government from accepting such returns. See
id. Simply put, it is not the Government's ban on machine gun
possession that violates due process; rather, it is the
Government's prosecution of citizens like Mr. Gambill for failure
to register and pay taxes on their machine guns, when the
Government will not accept such registration. See 1 W. LaFave & A.
Scott Jr., Substantive Criminal Law, section 3.3(c) at 291 (1986)
("one cannot be criminally liable for failing to do an act which he
is physically incapable of performing."). Mr. Gambill's conviction
for possessing an unregistered machine gun is a violation of his
due process rights.
Consequently, we reverse Mr. Gambill's conviction under Count
VI of the indictment for two reasons. First, section 5861(d) and
section 922(o) are irreconcilable. Second, the Government's
prosecution of Mr. Gambill under section 5861(d) for possession of
a machine gun violates his due process rights.
II. Silencer and Pipe Bombs
The Defendant also argues that it would have been impossible
for him to register his silencer and pipe bombs. Therefore, he ar-
gues that his convictions under Counts I through V should be
reversed. We disagree.
First, Mr. Gambill argues that he established at trial that
the Government would not permit registration of a silencer or a
pipe bomb. He relies upon the fact that several agents testified
that they did not know of the Government permitting such
registration. No statute, however, categorically prohibits the
possession of a pipe bomb or silencer. United States v. Dodge, 852
F.Supp. 135, 137 (D.Conn.1994); see also United States v. McCollom,
12 F.3d 968, 970-71 (10th Cir. 1993) (limiting Dalton holding to
prosecutions involving machine guns); United States v. Rivera, 58
F.3d 600, 602 (11th Cir.1995) (holding machine guns are
distinguishable from silencers because there is no statutory ban
against registration of silencers). Moreover, none of the agents
who testified said they were sure that the Government would
categorically deny an application to make and register a pipe bomb
or silencer. In fact, all of them admitted that they were not the
appropriate person to answer that question. Mr. Gambill should
have followed the appropriate application procedures for his pipe
bombs and silencer.
Even if it is unlikely that the Government would have accepted
Mr. Gambill's silencer or pipe bombs for registration, Mr. Gambill
has not cited a statute that makes the possession of such weapons
illegal. In fact, BATF maintains a separate procedure for
identifying destructive devices. See 26 U.S.C. section 5842.
Section 5842(a) provides that anyone making a firearm shall
identify each firearm, other than a destructive device, by serial
number. A destructive device, however, shall be identified "as the
Secretary may by regulations prescribe." Title 27 of the Code of
Federal Regulations section 179 has extensive provisions for the
identification of firearms including destructive devices. As a
result, the registration of a silencer or pipe bomb is not a legal
impossibility. See McCollom, 12 F.3d 968, 971 (10th Cir.1993).
Thus, we do not find a due process violation in Mr. Gambill's
conviction under Counts I through V of the indictment.
Moreover, at trial the Defendant attempted to argue that he
was using the pipe bombs to kill groundhogs. While this theory ap-
peared far-fetched, had he followed the applicable regulations he
would not have been convicted. Section 179.24 of the Code of
Federal Regulations provides that one may receive a ruling about
whether a device is considered destructive by applying to the
Director of BATF. Mr. Gambill did not present any evidence of such
an application at trial.
CONCLUSION
Accordingly, the Court hereby AFFIRMS the Defendant's conviction in
Counts I, II, III, IV, and V of the indictment, but REVERSES his
conviction in Count VI of the indictment.
SO ORDERED.
FOOTNOTES
1. The Government established that Mr. Gambill used a trigger
assembly to convert his SKS rifle into a weapon that fires in the
automatic mode, known as a machine gun. The indictment charges Mr.
Gambill with failing to register the machine gun he created.
2. The Government states that the Defendant did not present
evidence that the machine gun was made after 1986. The testimony
at trial, however, established that Mr. Gambill purchased the
trigger assembly at a gun show shortly before he was arrested.
Therefore, the Court finds that all of the relevant acts took place
in the 1990's, well after the 1986 enactment of section 922(o).
3. "Statutes criminalizing the possession, transfer, and making of
machine guns are merely malum prohibitum laws. In contrast to
rape, murder, and robbery, such gun-related activities are not
inherently bad; they are only technically or artificially illegal.
Courts, however, must defer to Congress when it legislates pursuant
to its enumerated powers." Ardoin, 19 F.3d at 186 n. 25 (Wiener,
J., dissenting). Therefore, if Mr. Gambill was properly charged
and convicted under section 922(o), the Court would be affirming
his conviction. The NFA, however, is a tax law and cannot
legitimately double as a per se prohibition against the possession
of machine guns.
4. After the Supreme Court decision in United States v. Lopez, -
U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a question remains
as to whether section 922(o) is constitutional. In Lopez, the
Supreme Court ruled that Congress' enactment of 18 U.S.C. section
922(q), the Gun-Free School Zones Act, exceeded Congress' commerce
clause authority. The Supreme Court found that possessing a gun in
or near a school does not implicate a channel or instrumentality of
interstate commerce. Id. at - , 115 S.Ct. at 1630-31. Similarly,
mere possession of a machine gun may not implicate interstate
commerce. That issue, however, is not before this Court, and
therefore, we leave the constitutionality of section 922(o) for
another day.